Welcome to the cutthroat world of pregnancy pillows. Leachco manufactures pregnancy pillows and has a patent on them. BabyAge is an online retailer of baby and maternity goods and sells pregnancy pillows, including Leachco’s pillows as well as the “Cozy Comfort,” BabyAge’s house-branded pillow.

Leachco asserted patent and trademark claims against BabyAge for the Cozy Comfort. The patent claims get tossed on summary judgment.

The trademark claim is based on the fact that BabyAge creates “featured brand” web pages for each manufacturer it carries. (See the current page, although the relevant action was before 2007). This featured brand page contained a “pregnancy pillows” section that had a 200 word narrative educating consumers about pregnancy pillows and informing them of two competitive brands–the Cozy Comfort and another brand. Each of these brand references included a hyperlink to the product page for those pillows. Leachco’s brands weren’t mentioned in the narrative at all.

Leachco argued that this narrative constituted a “bait and switch” because the Leachco brand lured consumers to the featured brand page, where they were then redirected to these competitive brands. The court conceptualizes this as initial interest confusion. After running through the multi-factor likelihood of consumer confusion test irresolutely, the court denies summary judgment to BabyAge on the trademark infringement claim.

The possibility of BabyAge being liable for the featured brand page is ludicrous for at least three reasons:

1) BabyAge should be protected under the First Sale doctrine for using the Leachco brand in the featured brand page. (Surprisingly, First Sale wasn’t mentioned in the opinion at all). Due to the First Sale doctrine, BabyAge is allowed to advertise that it sells Leachco products, which it did. The advertisement does not have to be exclusively for Leachco products, any more than a grocery store does not need to feature only one brand in any particular ad.

2) There is no possibility of “real” consumer confusion. The 200 word narrative is entirely clear that the pillows being discussed are not from Leachco; and any consumer investigating the linked product pages will be even more clear about the distinction. Thus, the only possible confusion is any initial interest confusion (whatever that means) that occurred before reading the narrative…but since the narrative self-corrects any confusion, where is the harm at all?

3) As I discuss in my Brand Spillovers paper, this looks like cyberspace exceptionalism. Offline retailers create these types of multi-brand product adjacencies all the time. As just one example, a retailer may have a dedicated area for a single brand (such as the clothing area of a department store), but there may be placards or signage in that area that inform consumers of other options, or there may be a salesperson assigned to the area who might orally inform consumers of other options. The signage or salesperson communications not only aren’t trademark infringement (initial interest confusion or otherwise), but (as evidenced by the complete lack of cases making such arguments) it would never occur to most trademark owners that they might sue the retailer for this “bait-and-switch.” Yet, somehow, when the signage and product information is all digital, suddenly consumers now might be bait-and-switched. Huh? As my Brand Spillovers paper explains, this is both doctrinally wrong and potentially detrimental to consumer search costs.